by Lucy Loizou

A question I am asked on a regular basis is “I am divorcing, how will our assets be divided?” This article looks at what factors are taken into account when a divorcing couple has to separate their financial assets and also considers what the split will be and how that split is calculated.

Introduction

The aim is to produce a fair outcome in each case. A number of factors are considered. Each case is decided on its own merits and circumstances. There will be no two outcomes that are the same. The English legal system is very flexible in its approach. This however can result in uncertainty and unpredictability. It is vitally important therefore that you seek legal advice early on to ensure that you are aware of the potential settlement in your case.

How is a “fair outcome achieved?”

A fair outcome is achieved by taking into account a number of different factors. These factors are found in the Matrimonial Causes Act 1973- Section 25. They are also known as the Section 25 checklist. They are supplemented by case law. The checklist in addition to the case law are applied in every single case and provide the Court with a guide on how to divide a family’s money.

The case law gives guidance on how the checklist is used in practise. A “fair outcome” is achieved by consideration being given to the checklist, to the needs of the spouses, whether there should be any compensation for commitment to the marriage and family life and how assets should be shared.

What will the financial outcome be in my divorce?

The starting point in all divorce cases is that there should be an equal division of assets. This is regardless of the length of the marriage. It recognises that marriage is a marital partnership of equals. Generally speaking, assets acquired during the marriage are known as “marital acquests” or “matrimonial property” and will almost always be divided equally unless the needs of the parties, especially reasonable accommodation for any children, are greater. In those circumstances, and inevitably many cases fall into this category, the Courts will look to provide for those needs which will lead to a departure from equality.

In relation to “non marital” assets or “non matrimonial property”, for example inheritances, gifts, pre marital assets and also some assets acquired post separation, it will be easier to show good reason to depart from equality. So there would not necessarily be an equal sharing of these assets. However, bear in mind that reasonable needs will trump this assumption. Therefore, if reasonable housing needs cannot be met without recourse to the “non marital”, assets then those assets will be used to provide for need. They will not simply be ring fenced or taken out of the equation.

Very often divorce settlements emphasize the importance of accommodation for each parent with any children.

Please note that the above can only be a guide and legal advice must be taken in each individual case.

The information above is an accurate reflection of the law at the time of writing - May 2010.

Questions

1. What is spousal maintenance and does it apply in my case?

Spousal maintenance is often an addition to the division of the capital described above. It takes the form 2 of monthly or other periodical payments. It may continue for a term of years e.g to allow you to re-train or become financially self sufficient or it may be for life. It automatically ceases on re-marriage and on the death of the receiving party. Child Maintenance is separate and will either be agreed between the spouses otherwise through the CSA and is in addition to spousal maintenance.

2. We have only been married for 2 years. Does the 50/50 still apply?

Yes, however this short marriage could justify a significant departure from equality. If there are no children, a significant emphasis will be placed on the contributions made during the marriage, what assets each party bought into the marriage and the ages of the parties when deciding what the “fair” outcome should be.

3. Do I need a Court Order if we have agreed a financial deal?

This is a matter for you to discuss with your spouse. You do not need to get a Court Order. However, a Court order is recommended to state finality and certainty. It avoids the prospect of claims many years later or even after one is dead and against one’s estate.